Capacity and consent

Valid consent

Valid (previously: informed consent) is required from all patients or, in the case of children, parents and is based on freewill, capacity and knowledge. Such knowledge needs to be sufficient for the person to come to a decision to refuse or agree to the proposed treatment.

The patient, or parent/guardian, must understand the potential risks and benefits of the treatment and legally agree to accept those risks in writing.

A valid consent:

  • includes the essential information about the procedure, the risks, benefits and alternatives; also its purpose and information given must be fully understandable for the patient
  • must ensure that the decision is made by the patient and agreement to the procedure is voluntary, eg by requiring written consent and, where subjects are not competent to agree, obtaining consent by a legal guardian or advocate
  • must respect the patient’s decision, even where the clinician considers the decision not to be in the patient’s best interests.
  • patient knows a potential consequences of declining tx


A person is considered unable to make a decision if they cannot:

  • understand information relevant to the decision to be made
  • retain that information in their mind
  • use or weigh up that information, or
  • communicate their decision

If the person is considered to lack capacity, a decision can be made on their behalf. The Mental Capacity Act states that such a decision must be made in her/his best interests.

  • Capacity assessment is always required if any doubts
  • Form 4 has to be completed for person with lack of capacity to consent
  • Section C in Consent Form 4 may not be completed as not possible to find out who has got LPA towards a patient
  • Good practice to thoroughly discuss about dental treatment plan with the carer or suport worker in order to make ‘best interest’ decision
  • Carer or support worker may sign Form 4 as well
  • LPA – Power of Attorney (lasting) should be establish, if available, to make a decision in patient’s best interest
  • To check out who has got LPA towards patient with special needs and lacks capacity
  • Quite often not easy to find out who has got LPA
  • Care home managers usually act on bahalfof patient with regards to financial issues but it does not mean they have LPA

Independent advocates (IMCA)

Independent mental capacity advocate fulfills the role in situation where there is no one who can act on behalf or support individual who lacks capacity. Independent advocate is an independent person who should be instructed and consulted for people lacking capacity who have no-one else to support them, whenever an National Health Service or any other local authority is proposing serious medical/dental treatment. Independend advocates are not normally involved in the provision of routine dental care but may well be involved in decisions about treatment options for eg. general anaesthesia, conscious sedation and/or extensive and invasive dental procedures. In UK primary care trusts should employ the independent advocate in place who can answer questions relating to the Mental Capacity Act issues  and advise regarding the use of independent advocates.

The Mental Capacity Act affects people over 16 years of age with mental illness, dementia, learning disabilities, brain damage, confusion, drowsiness, loss of consciousness, delirium, or concussion. It also includes those who lack capacity because of alcohol or drug use. The Act applies to everyone involved in the care of any individual who lacks the capacity to make their own decisions and, therefore, includes anyone acting in a professional capacity or role, such as healthcare professionals, social workers and care assistants.

Close cooperation with next to kin, relatives, family members, carers and support workers.

Use a proper NHS form for consent protocol ! Consent Form 1 – adults, Consent form 2 – Children, Consent Form 4 – person lacking capacity to consent requires best interest decision

Remember – foster parents are unlikely to have PR !, social/support workers may have PR.

To avoid invasive procedures if no valid consent, even for emergency cases


Encourage patient to signs the form, even just initials, if patients has difficulties with writing due to : manual dexterity issues, arthritis, tremor, visual impairment

Be aware of “Medical Consent Card” – Authorization to give consent for Medical Treatment” – “This is to certify that, I, the undersigned, hold the legal right to consent to medical, dental treatment, for this child/young person, but have delegated this right to”….[Name of Foster Carers/Residential Unit.

Be aware of Deprivation of Liberty Safeguards or Protective Care

Remember about ‘Gillick competency’

Mental state of the patient can be: short term and fluctuating, esp. in case of patients with dementia

Local Authority may have rights to consent for medical/dental procedures in patient

Use a simple way of communication including drawings, explanations in writing, etc. if necessary (eg. explaining using simplified scheme why upper incisor traumatized due to the seizures must be root treated)

Teenagers below 16 years old are in vast majority of cases competent enough to eg. decline dental tx,




  • Recommended article: Sue Life, SAAD Digest, Vol 32, Jan 2016, “What new is in….The Process of Consent”.
  • A. Dougall & J. Fiske. Access to special care dentistry, part 3. Consent and capacity. British Dental Journal 205, 71 – 81 (2008)
  • New Clinical Guidelines and Integrated Care Pathways for the Oral Health care of People with Learning Disabilities (2012)
  • GDC reccommendations
  • British Society for Disability and Oral Health & British Society of Gerodontology recommendations
  • Mental Health Capacity Act (2005)


Above 80 yeear old patient, living in care home, no relatives. Attended emergency appt. requested by carer. Patent indicates some dentally related non urgent pain LRQ, unable to specify the problem. Seems to have short term capacity to consent, highly fluctuating. Non urgent case, no need for immediate intervention. Extraoral and intraoral examintion carried out. Mobile lower premolar, grade 3 mobility, with advanced perio involvement. Patient compliant with dental radiograph, which confirmed initial diagnosis. Requested advice from Head of Carers regarding best patient interest. Tx plan postponed. Next appt. letter received stating ambiguosly the pt’s ability to consent from care home, however patient clearly expressed wishes saying entering dental surgery: ‘I want to have this tooth taken out today’. Decided to perform full capacity assessment. Patient understand and able to repeat proposed tx plan. Uneventful extraction completed.

Alkohol dependent middle age patient. Stays in rehabilitation unit now. Highly phobic, increased anxiety as he has not been to dentist for a long time. MH revealed mild epileptic seizures due to prolonged alkohol intake. On Epilin. GP opinion re: proper liver function. Capacity assessment performed. Patient fully able to consent for dental procedure, ie. to understand, to retain, to weight and to communicate information provided. Consent signed. Extraction performed uneventfully.


Quick Reference Guide regarding establishing a valid consent for treatment



 Valid consent for dental treatment under general anaesthesia (DGA)

Fig. 1